$55m Debt: Court Summons Abiodun Awosika, 3 Others For Alleged Contempt
Justice Ambrose Lewis-Allagoa of a Lagos Federal High Court, today, ordered a Nigeria businessman, Abiodun Awosika and three others, to appear before his court over alleged disobedience to court orders.
Others alleged Contemnors ordered to appear before the court are: Mr. Olukayode Pitan; Mr. Adekunle Areogun and Dr. Steve Uhunmwangho.
The judge order was sequel to an application filed by Mr. Kunle Ogunba (SAN) a Receiver Manager to Sentinel Exploration And Production Limited, but argued by Barrister Taiwo Ogunba.
The court ordered the alleged Contemnors to appear before the court after dismissing their preliminary objection to the committal proceedings filed against them, Mr. Kunle Ogunba (SAN), the Receiver Manager to Sentinel Exploration and Production Limited.
The court has fixed May 30, for hearing of committal proceedings against the alleged contemnors.
Parties in the suit are: Excel Exploration And Production Limited, plaintiff/respondent and alleged Contemnor; while Access Bank Plc; Sentinel Exploration And Production Limited (in receivership) and Mr. Kunle Ogunba (SAN) appointed over Sentinel Exploration And Production Limited, as the Reciever Manager, under the Deed of Appointment dated March 6, 2019, as defendants/applicants.
In urging the court to commit the alleged contemnors to prison for disobeying the court orders, the applicant, in an affidavit In Support Of Form 49 deposed to by Obinna Ukpai Kalu, a lawyer in the Chamber of Ogunba & Associates, stated that the court on November 18, 2021, delivered a ruling direct Excel Exploration And Production Limited- Plaintiff/Respondent in the suit marked FHC/L/CS/373/21, to furnish monthly activity report to the 3 Defendant (which include details on mining lifting and crude oil sale) on the Eremor Marginal Fie! 46) and to carry the 3rd defendant, Kunle Ogunba (SAN) (Receiver/Manager of the second applicant) the activities relating to the Eremor Marginal Field (OML 46) pending the determination of this suit.
The deponet stated that as a fact that notwithstanding the subsisting orders of the court against the Excel Exploration and Production Limited, by the alleged contemnors blatantly failed, refused and neglected to furnish monthly activity report to the Receiver Manager (which shall include details on mining lifting and crude oll sate) on the Eremor Marginal Field (OML 46) and to carry the Receiver/Manager along in the activities relating ta the Eremor Marginal Field (OMI 96).
He states that in a bid to afford the Plaintiff/Respondent “a benefit of the doubt” the applicants, vide their Counsel on record authored a correspondence dated 1st December 2021 to the Plaintiff/Respondent demanding for a monthly activity report to the 3rd Defendant (which include details on mining lifting and crude oil sale) on the Eremor Marginal Field (OML 46) in line with the order of this Honourable Court made on 1st November 2021.
The deponet stated that in response to the applicants correspondence, the Plaintiff/Respondent vide its Solicitors authored a correspondence dated December 6, 2021, stating that the Plaintiff/Respondent was not obliged to avail the Receiver/Manager of the second Applicant, any monthly report in respect of the Eremor Marginal Fied for the month of November 2021 or any other month.
He averred that as a rejoinder to the Plaintiff/Respondent’s correspondence of December 6, 2021, the Applicants Counsel authored a correspondence dated December 10, 2021 to the Plaintiff/Respondent clarifying that there was a subsisting order of Court and further demanded that the Plaintiff/Respondent comply with the said subsisting order.
He stated that as a fact, the Plaintiff/Respondent blatantly ignored the Applicants Solicitors’ correspondence of December 10, 2021, prompting the Applicants Solicitors’ correspondence of January 14, 2022 reminding the Plaintiff/Applicant of the subsisting orders of this Honourable Court, and the need to comply with same forthwith. Adding that in response the to the Applicants Solicitors’ correspondence, the Plaintiff/Respondent vide its Solicitor authored a correspondence dated January 27, 2022 referring the Applicants to its correspondence of December 6, 2021, reiterating that it was not obliged to render any monthly report to the third defendant.
He averred that following the foregoing persistence of the Plaintiff/Respondent and the cited persons in disobeying the interim orders of the Court, the Applicants have caused FORM 48 (Notice of Consequences of Disobedience to Court Order), to be served on them by substituted means on June 14, 2022; thus putting them on notice of the consequences of disobedience to Order of Court. Proof of service of the said FORM 48 forms part of the record of this Honourable Court.
He stated further that despite being served with the Form 48 herein, the Plaintiff/Respondent vide the cited persons have remained steadfast in disobeying and undermining the majesty of this Honourable Court. Adding that the Applicant’s Receiver/Manager) has been completely side lined from keeping an eye on the res of this suit as presently constituted and carrying out its duty as codified in the Fifth Schedule of the Companies and Allied Matters Act, and as sanctioned by the Ruling of this Honourable Court made on 1st November 2021.
He averred that the cited persons are the Directors of the Plaintiff/Respondent, hence the urgent need to lift the corporate veil of the Plaintiff/Respondent to adequately punish the cited persons for flouting the orders of this Honourable Court. Adding that the disobedience to the orders of court amounts to contemptuous challenge of the integrity and majesty of this Honourable Court and attempt to undermine the due administration of justice.
He stated that it is in the interest of justice and in accordance with our laws that an Order for the Committal to Prison of the cited persons/alleged contemnors be made by the Court until or the occurrence of such an event that shows clearly that the cited persons have purged themselves of the contempt of this Honourable Court. While adding that the continuous disobedience to the Court’s Order is an affront to the integrity and majesty of this Honourable Court and thereby undermines the due administration of justice.
He consequently asked the court for the following orders: “an order granting leave to the Applicants to lift the veil of incorporation of the Plaintiff/Respondent in tandem with the subsisting interim order of this Honourable court to such an extent as to permit, authorize and/or sanction contempt and/or committal proceedings against the persons behind their disobedience to Order of this court as per the FORM 48 (previously issued) and the FORM 49 originated by the foregoing.
“An order of the court committing Mr Abiodun Awosika; Mr. Olukayode Pitan
Mr. Adekunle Areogun and Dr. Steve Uhunmwangho, to prison for their wilful, deliberate and orchestrated disobedience to the interim orders of this Honourable Court.
“An order of this Honourable court that the said contemnors as lawfully and ultimately cited for contempt herein shall remain in prison and/or protective custody of any of the detaining security agencies or at any designated prison/reformatory in Nigeria’s territorial landscape until they purge themselves of the contempt and majesty of this Honourable court.
But th alleged contemnors in their affidavit to show cause why order of committal should not be made against them deposed to by Abiodun Awosika, the Managing Director/Chief Executive Officer of Excel Exploration and Production Limited, stated that he was aware that on November 1, 2021, the Court ordered the first Respondent to render monthly accounts of activities on the Eremor Marginal Field to the Receiver/Manager of the second Defendant.
He stated that the first respondent was dissatisfied with the Order and did file a Notice of Appeal to the Court of Appeal within the statutory prescribed time on 11th November 2021. Adding that the Record of Appeal was transmitted and the appeal entered at the Court of Appeal on December 14, 2021. Though the Record of Appeal was transmitted out of time, the 1st Respondent has a pending application for extension of time to regularise same before the Court of Appeal.
He stated that thereafter, the first respondent filed at the Court of Appeal, an application for injunction pending appeal dated May 10, 2022. The Application for injunction pending appeal dated May 10, 2022. Adding that the Notice of Appeal and the application for injunction have been served on the Defendants and are still pending before the Court of Appeal. As a matter of fact, the Applicants have joined issues with the 1 Respondent on the motion for injunction by filing a Counter-Affidavit dated 3 June 2022 to the motion.
He stated that it was the advice of counsel that pending the exercise of a right of appeal to a higher court and in light of the pending applications, the respondent cannot be compelled to comply with the order under appeal. And that the first Respondent’s failure to obey the Order of court was not wilful, deliberate or out of disrespect to this Honourable Court but consequent on the exercise of its rights in the pending appeal against the Order and the injunction pending appeal as stated above. And that the first respondent reiterated this position in its responses dated December 6, 2021 and January 27, 2022 to the Applicants’ letters demanding compliance with the Order on the following dates, December 9, 2021 and January 28, 2022.
He further stated that on June 3, 2022, when this suit came up for trial the Court did not proceed with the trial on the ground that the Applicants had taken steps to commence contempt proceedings against the directors of the 1st Respondent for alleged non-compliance with the order made on November 1, 2021. This procedure was taken by the Applicants notwithstanding their knowledge of the pending appeal and application for injunction pending appeal by an ex parte application before this honourable Court.
Awosika stated that Mr. Olukayode Pitan, the second cited person is not a director of the first Respondent. Adding that it will be in the interest of justice for this Honourable Court to refuse and dismiss the application to commit all and any of the cited Persons to prison,
In the substantive suit, the Counter Claimant is seeking the followings; “a declaration that the first defendant willfully and deliberately breached the terms of of Clause 3.2 (b) of the FSA, Clause 3.2 and 4 (v) of the undertaking dated 26” March 2014, and Clause 7 (a) of the Escrow Agreement executed sometime in 2014, by unilaterally terminating the Financial Services Agreement against the 2nd Defendant without recourse to the Counter Claimant.
“A declaration that the first defendant is indebted to the Counter Claimant in the sum of $55,002,400.46 million USD, being the principal sum and interest thereon on the credit facilities advanced to both the defendants to the Counter Claim (by the terms of the FSA, Undertaking dated March 26, 2014 and Escrow Agreement executed sometime in 2014) by the Counter Claimant.
“An order of the court giving final Judgment to the Counter Claimant as per its Counter Claim and consequently compelling the first defendant to pay the sum of $55,002,400.46 million USD, being the principal sum and Interest thereon on the credit facilities advanced to both the Defendants to the Counter Claim (by the terms of the FSA, Undertaking dated 26th March 2014 and Escrow Agreement executed sometime in 2014) by the Counter Claimant forthwith.
“AN order of the court that the Counter Claimant is entitled to recover the sum of $55,002,400.46 million USD, with accrued interest from the date of availment of the facility until the date of Judgment jointly, severally and/or individually from the Defendants to Counter Claim as per this Counter Claim and as a first line charge on the operations of the Eremor Marginal Field (OML 46) in the peculiar circumstance herein.
“An order of the court for pre-judgment interest at the commercial rate of 21 percent par annum, from the date of filing this suit till date of Judgment and thereafter at the rate of 10 percent par annum, till liquidation of the Judgment sum. And N10, million as cost of instituting the suit.